By Jonathan Wood
The late Supreme Court Justice Antonin Scalia once described the Endangered Species Act as imposing “unfairness to the point of financial ruin – not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use.” His comment resonates with far too many landowners across the country.
The target of his criticism was the Endangered Species Act’s “take” prohibition, which broadly forbids any activity that affects a single member of a protected species or its habitat. This incredibly burdensome provision bars a wide range of ordinary land uses, and subjects anyone who violates it to costly lawsuits, substantial fines and even imprisonment.
Recognizing the severe consequences this broad prohibition can have, Congress expressly limited it to species classified as “endangered” – those in immediate danger of extinction. In contrast, for species classified as “threatened” – those that face only remote risks – the Endangered Species Act provided for less burdensome protections that do not include the take prohibition.
However, the U.S. Fish and Wildlife Service thought it knew better than Congress. Shortly after the statute was enacted, the service adopted a regulation categorically extending the take prohibition to all threatened species. Ever since, property owners across the country have borne the brunt of this regulation, without the Wildlife Service ever attempting to justify it or its ruinous costs.
In recent petitions to the service, Pacific Legal Foundation, a watchdog organization for property rights and balanced environmental regulations, argues that the regulation violates the
Endangered Species Act and illegally imposes severe burdens on property owners and small businesses nationwide.
The illegal regulation significantly undermines incentives for conservation. Absent the regulation, property owners whose lands contain species classified as endangered would have a strong incentive to aid those species. If a species recovered to the point that its status could be changed from endangered to threatened, the take prohibition would be lifted, rewarding property owners for their efforts. Similarly, property owners with threatened species on their land would have an incentive to conserve them, because if the species became endangered the take prohibition would be imposed.
Since it was enacted more than 40 years ago, less than 2 percent of protected species have recovered to the point that they no longer need the statute’s protections.
Repealing the illegal regulation, and restoring the statute’s primary incentive for conservation, will hopefully turn this around, while reducing regulatory burdens for the property owners contributing to species’ recovery.
Jonathan Wood is an environmental attorney with Pacific Legal Foundation.